Criminal Justice

Securing a Favorable Federal Prison for Your Client

Alan Ellis

Most federal criminal defendants either will plead or be found guilty at trial, and, in light of the Federal Sentencing Guidelines, will receive a prison term. Obviously, one of their main concerns is where they’ll do their time. For a defense lawyer, it is important to help ensure that the client is placed in the proper prison facility. Understanding the placement process is the first step.

It is the policy of the Federal Bureau of Prisons to place an individual in the least restrictive facility for which he or she qualifies within reasonable proximity to a "release residence," the defendant’s legal address on the Presentence Investigation Report.

In order to determine the least restrictive facilities, the eighty-plus institutions in the federal prison system have been grouped into five security levels: minimum, low, medium, high, and administrative.

Designation of an inmate to a specific institution is governed by Bureau of Prisons Program Statement 5100.05 (called the Security Designation and Custody Classification Manual) and involves two steps. The first step is to "score" the defendant to determine at which security level he or she qualifies. This is done by the community corrections manager (CCM). The criteria considered by the CCM include existence of and type of detainer; severity of current offense; expected length of incarceration; type of prior commitments; history of escapes or attempts to escape; history of violence; public safety concerns; and precommitment status.

Thus, a voluntary surrender ordered by the sentencing judge is very important. A voluntary surrender lowers a defendant’s security score (the lower the better).

The CCM also makes other determinations about the offense and the offenders—identified as public safety factors (PSF)—that can dramatically impact the designation decision.

Security Threat Group. Any male offender verified as a member of such a group and identified in the Central Inmate Monitoring System will be housed in a high security facility unless the PSF is waived.

Greatest Severity Offense. Males in this category will not be eligible for a minimum security facility unless the PSF is waived. Offenses include convictions for aircraft piracy; arson; assault (intending serious injury or causing permanent of life-threatening injury); carjacking with violence or threat of violence; drug offenses based on quantities and the fact that the offender plays a managerial/nonperipheral role; escape from a closed institution using force or weapons; espionage, treason, and sabotage; use or possession of explosives involving risk of death or bodily injury; extortion by weapons or threat of violence; homicide or voluntary manslaughter; kidnaping involving abduction, unlawful restraint, or demanding or receiving ransom money; robbery with the use of a weapon or threat of violence; sexual offenses including rape, forcible sodomy, transportation with coercion or force for commercial purposes; and distribution of automatic weapons or exporting sophisticated weaponry.

Sex Offender. Individual whose behavior in the current offense or prior criminal history includes forcible rape or sexual battery; possession, distribution, or mailing of child pornography or related paraphernalia; any sexual acts or contact with a minor or other person incapable of granting consent; or any sexual acts or contacts not identified above that are aggressive or abusive in nature. At-tempted sex offenses are to be treated as if the sexual act or contact was completed. Application of this PSF is required for any offender whose current term of incarceration involves violation of any of the following statutes: 18 U.S.C. § 2241, 18 U.S.C. § 2242, 18 U.S.C. § 2243, 18 U.S.C. § 2244, 18 U.S.C. § 2251, 18 U.S.C. § 2252.

Threat to Government Officials. An offender identified under the Central Inmate Monitoring System who has posed a significant threat to a government official will not be housed in a minimum security facility until the PSF has been waived.

Deportable Alien. A deportable alien is an inmate who is a citizen of a foreign country. Unless the offender meets certain criteria, the PSF will be applied and the offender cannot be housed in a minimum security facility or a community corrections center unless the PSF has been waived.

Sentence Length. Unless the PSF has been waived, a male offender with more than ten years remaining to serve will be housed in at least a low security facility; a male offender with more than eighteen years remaining to serve will be housed in at least a medium security facility; a male offender with more than twenty-five years remaining to serve (including nonparolable life sentences) will be housed in a high security facility.

Violent Behavior. A female offender whose current offense or history involves two serious incidents of violence within the last five years will be assigned to a high security facility.

Escape Risk. A female offender who has been involved in a serious escape within the last ten years, including the current offense, will be assigned to a high security prison.

A waiver of a PSF can only be executed by one of six regional directors of the Bureau of Prisons. The CCM and the regional designator (each region also has a regional designator who makes the final decision where to send an individual) look to the Presentence Investigative (PSI) report to obtain most of this information. The process begins when a U.S. marshal receives a copy of the Judgment in a Criminal Case from the court or clerk. At this point, the marshal requests a designation from the Bureau of Prisons’ local CCM. The marshal also sends a form known as USM—129 to the CCM identifying the custody status of the individual and how much time, if any, he or she has served. The U.S. probation officer provides a copy of the Presentence Investigation Report to the CCM.

The CCM reviews these materials along with any other information submitted by the sentencing judge, such as a recommendation of a place of incarceration (commonly contained in the Judgment in a Criminal Case, but in rare instances contained on an AO—235 form or even in a letter to the regional director). This recommendation is just that—a recommendation. It is not binding on the Bureau of Prisons.

Similarly, in accordance with Rule 38(b) of the Federal Rules of Criminal Procedure, when the court of conviction recommends that the inmate be retained in a place of confinement that will allow the inmate to participate in the preparation of the appeal, the Bureau of Prisons will make every effort to place the inmate in such a facility. If there is a reason for not placing the inmate in that facility, the court is made aware of the fact and an attempt is made to arrive at an acceptable alternative.

Some designations actually require a judicial recommendation. Once a designation is made, the information is communicated to the U.S. marshal, who then communicates the information directly to the defendant. Under strict Bureau of Prisons policy, the bureau will not release the information to any other individual, including the defendant’s lawyer. Hence, the lawyer can only find out the designated prison through the client, who has to ask the U.S. marshal.

More important to the client than a judicial recommendation, or in some cases even a voluntary surrender, is the lawyer’s role in making sure that any inaccurate information in the PSI is corrected. It cannot be emphasized enough that this document is the one collection of data upon which virtually all correctional designation and other decisions are made. The PSI is known as the "Bible" by prisoners and bureau staff. If objections are made about inaccurate information at the sentencing, and the judge finds that the PSI information is inaccurate, it is incumbent upon counsel to make sure that the PSI is corrected before it is sent to the Bureau of Prisons, or at least that formal findings are made by the judge pursuant to the Federal Rules of Criminal Procedure 32(c)(1) and attached to the PSI before it is forwarded to the Bureau of Prisons. As stated above, in some cases, a finding can be stated on the Judgment in a Criminal Case and this will suffice.

Prisoners often bitterly complain that they have been negatively impacted by inaccurate information in their PSI, saying that "99 percent of lawyers don’t understand the prison designation and correctional process and the 1 percent who do are all doing time." Be statistically insignificant.

Alan Ellis is a criminal defense lawyer, with offices in San Francisco and Philadelphia

This article is an abridged and edited version of one that originally appeared in Criminal Justice, Summer 1996 (11:2).